Separation of Powers

[Volume 1, Page 314]

CHAPTER 10 | Document 2

Marchamont Nedham, The Excellencie of a Free-State

1656Gwyn 131--33

A fifth Errour in Policy hath been this, viz. a permitting of the Legislative and Executive Powers of a State, to rest in one and the same hands and persons. By the Legislative Power, we understand the Power of making, altering, or repealing Laws, which in all well-ordered Governments, hath ever been lodged in a succession of the supreme Councels of Assemblies of a Nation.

By the Executive Power, we mean that Power which is derived from the other, and by their Authority transfer'd into the hand or hands of one Person, (called a Prince) or into the hands of many (called States) for the administration of Government, in the Execution of those Laws. In the keeping of these two Powers distinct, flowing in distinct Channels, so that they may never meet in one, save upon some short extraordinary occasion consists the safety of a state.

The Reason is evident; because if the Law-makers (who ever have the Supream Power) should be also the constant Administrators and Dispencers of Law and Justice, then (by consequence) the People would be left without Remedy, in case of Injustice, since no Appeal can lie under Heaven against such as have the Supremacy; which, if once admitted, were inconsistent with the very intent and natural import of true Policy: which ever supposeth, that men in Power may be unrighteous; and therefore (presuming the worst) points always, in all determinations, at the Enormities and Remedies of Government, on the behalf of the People.

For the clearing of this, it is worthy your observation; that in all Kingdomes and States whatsoever, where they have had any thing of Freedom among them, the Legislative and Executive Powers have been managed in distinct hands: That is to say, the Law-makers have set down Laws, as Rules of Government; and then put Power into the hands of others (not their own) to govern by those Rules; by which means the people were happy having no Governours, but such as were liable to give an account of Government to the supream Councel of Law-makers. And on [Volume 1, Page 315] the other side, it is no less worthy of a very serious observation; That Kings and standing States never became absolute over the People, till they brought both the making and execution of Lawes into their own hands: and as this Usurpation of theirs took place by degrees, so unlimited Arbitrary Power crept up into the Throne, there to domineer o're the World, and defie the Liberties of the People.

Cicero, in his second Book de Offic. and his third, de Legibus, speaking of the first institution of Kings, tells us, how they were at first left to govern at their own discretion without Laws. Then their Wills, and their Words, were Law, the making and execution of Lawes was in one and the same hands.

But what was the consequence? Nothing but Injustice, and Injustice without Remedy, till the People were taught by necessity to ordain Lawes, as Rules whereby they ought to govern. Then began the meeting of the People successively in their supream Assemblies, to make Laws, whereby Kings (in such places as continued under the Kingly Form) were limited and restrained, so that they could do nothing in Government, but what was agreeable to Law; for which they were accountable, as well as other Officers were in other Forms of Government, to those supreme Councels and Assemblies: Witness all the old stories of Athens, Sparta, and other Countries of Greece, where you shall find, that the Law-making, and the Law-executing Powers, were placed in distinct hands under every Form of Government: For, so much of Freedom they retained still under every Form, till they were both swallowed up (as they were several times) by an absolute Domination.

In old Rome, we find Romulus their first King cut in pieces by the Senate, for taking upon him to make and execute Laws at his own pleasure. And Livy tells us, that the reason why they expel'd Tarquin their last King, was, because he took the Executive and Legislative Powers both into his own hands, making himself both Legislator, and Officer, inconsulto Senatus without advice, and in defiance of the Senate.

Kings being cashier'd, then their Standing-Senates came in play, who making and executing Laws, by Decrees of their own, soon grew intolerable, and put the people upon divers desperate Adventures, to get the Legislative Power out of their hands, and place it in their own; that is in a succession of their Supream Assemblies: But the Executive Power they left, part in the hands of Officers of their own, and part in the Senate; in which State it continued some hundreds of years, to the great happiness and content of all, till the Senate by sleights and subtilties got both Power into their own possession again, and turned all into confusion.

Afterwards, their Emperors (though Usurpers) durst not at first turn both these Powers into the Channel of their own unbounded Will; but did it by degrees, that they might the more insensibly deprive the people of their Liberty, till at length they openly made and executed Laws at their own pleasures, being both Legislators and Officers, without giving an account to any: and so there was an end of the Roman Liberty.

To come nearer home, let us look into the old Constitution of the Commonwealths, and Kingdomes of Europe. We find in the Italian States; Venice, which having the Legislative and Executive Power, confined within the narrow Pale of its Nobility in the Senate, is not so free as once Florence was with Siena, Millan, and the rest; before their Dukes, by arrogating both those Powers to themselves, worm'd them out of their Liberty.

Of all those States there, onely Genoa remains in a free posture, by keeping the Power of Legislation onely in their Supream Assemblies, and leaving the Execution of Law in a titular Duke, and a Councel, the keeping of these Powers asunder within their proper Sphere, is one principal Reason why they have been able to exclude Tyranny out of their own State, while it hath run the Round in Italy.

What made the Grand Seignior absolute of old, but his ingrossing both these Powers? and of late the Kings of Spain and France? In ancient time the case stood for otherwise; for in Ambrosio Morales his Chronicle you will finde, that in Spain the Legislative power was lodged onely in their Supreme Councel, and their King was no more but an elective Officer, to execute such Laws as they made, and in case of failing, to give them an accompt, and submit to their judgements, which was the common practice; as you may see also in Mariana: It was so also in Aragon till it was united to Castile, by the Mariage of Ferdimand and Isabel; and then both States soon lost their liberty, by the projects of Ferdimand and his successors, who drew the powers of Legislation and Execution of Law, within the verge and influence of the Prerogative Royall: whilest these two powers were kept distinct, then these States were free; but the ingrossing of them in one and the same hands, was the losse of their Freedom.

France likewise was once as free as any Nation under Heaven, though the King of late hath done all, and been all in all, till the time of Lewis the eleventh: he was no more but an Officer of State, regulated by Law, to see the Laws put in execution; and the Legislative Power (that) rested in the Assembly of the 3. States; but Lewis, by snatching both these Powers into the single hands of himself, and his successors, rookt them of their Liberty; which they may now recover again, if they have but so much manhood, as to reduce the two Powers into their ancient, or into better Channels.

This pattern of Lewis was followed close by the late King of England, who by our ancient Laws, was the same here, that Lewis ought to have been in France, an Officer in trust, to see to the execution of the Lawes: but by aiming at the same ends which Lewis attained, and straining, by the ruine of Parliaments, to reduce the Legislative Power, as well as the Executive into his own hands, he instead of an absolute Tyranny, which might have followed his project, brought a swift destruction upon himself and Family.

Thus you see it appears, that the keeping of these two Powers distinct, hath been a ground preservative of the peoples Interest, whereas their uniting hath been its ruine all along in so many Ages and Nations.

The Founders' Constitution
Volume 1, Chapter 10, Document 2
The University of Chicago Press

Gwyn, W. B. The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution. Tulane Studies in Political Science, vol. 9. New Orleans: Tulane University, 1965.